No. 81094-0
_________________________________________________________
SUPREME COURT OF THE STATE OF WASHINGTON
BUILDING INDUSTRY ASSOCIATION OF WASHINGTON,
Appellant,
v.
PAT MCCARTHY, in her official capacity as Pierce County Auditor,
and PIERCE COUNTY, a Washington municipal corporation,
Respondents.
AMICUS CURIAE BRIEF OF ALLIED DAILY NEWSPAPERS OF WASHINGTON, WASHINGTON
NEWSPAPER PUBLISHERS ASSOCIATION, WASHINGTON STATE ASSOCIATION OF BROADCASTERS
AND SOCIETY OF ENVIRONMENTAL JOURNALISTS IN SUPPORT OF DIRECT REVIEW
Katherine George
WSBA No. 36288
Law Offices of Charlotte Cassady
15532 Southeast 25th Street
Bellevue, WA 98007
(425) 653-5516
Attorneys for Amici
TABLE OF CONTENTS
I. INTRODUCTION 1
II. NATURE OF THE CASE 1
III. ISSUE PRESENTED FOR REVIEW 2
IV. GROUNDS FOR DIRECT REVIEW 2
A. Preventing E-mail Destruction is Urgent. 2
B. The Burden of Proof Must Be On Agencies, Not Citizens 3
C. News Reports Illustrate the Public's Interest in E-mails 4
V. CONCLUSION 10
APPENDICES
DECLARATION OF MICHAEL FANCHER
DECLARATION OF KATHERINE GEORGE (WITH EXHIBITS)
TABLE OF AUTHORITIES
Statutes
RCW 42.56.030 5, 10
RCW 42.56.070(1) 4
RCW 42.56.100 2
RCW 42.56.550(1) 3, 4
Other Authorities
All's Well That Ends Well, Act iii, Scene V,
William Shakespeare, First Folio, 1623 1
Rules
RAP 4.2(a)(4) 3, 7
I. INTRODUCTION
The broad public import of this case is best summarized with a centuries-old
adage from William Shakespeare:
No legacy is so rich as honesty.1
At issue here is the public's right to know the honest, unfiltered expressions
of its government. As numerous news stories illustrate, a government's
e-mails can show that concerns were ignored, that pressures were exerted, or
even that lies were told -- aspects of the public's business that do not pop
out of press releases. If the voter-approved Public Records Act, Chap. 42.56
RCW (PRA), is to function as voters intended, it must be interpreted to
protect public access to e-mails. Otherwise, the legacy of honesty -- instead
of being ferreted from computer files -- may be erased forever.
II. NATURE OF THE CASE
The appellant Building Industry Association of Washington (BIAW) seeks direct
review of a trial court order dismissing the claim that Pierce County
unlawfully destroyed e-mails which the BIAW requested under the PRA. The
Society of Environmental Journalists, Allied Daily Newspapers of Washington,
Washington Newspaper Publishers Association and Washington State Association
of Broadcasters (collectively "news organizations"), incorporate by reference
the description of the case and decision on pages 1 through 7 of the BIAW's
Statement of Grounds for Direct Review.
III. ISSUES PRESENTED FOR REVIEW
The news organizations incorporate by reference the statement of issues on
page 7 of the BIAW's Statement of Grounds for Direct Review.
IV. GROUNDS FOR DIRECT REVIEW
The news organizations agree with the reasons for direct review stated on
pages 8 through 15 of the BIAW's Statement of Grounds for Direct Review. In
doing so, the news organizations do not suggest that their interests are
wholly aligned with the BIAW's. 2 However, they do share an interest in a
speedy resolution by this Court of the vitally important issues surrounding
disclosure of government e-mails.
A. Preventing E-mail Destruction is Urgent.
Every day that the issues in this case remain unsettled is another day when
governments may destroy e-mails of value to the public. The risk of permanent
loss of public information, despite RCW 42.56.100's mandate "to protect public
records from damage," imbues this case with urgency and broad public import.
Therefore, the case merits direct review by this Court. RAP 4.2(a)(4).
B. The Burden of Proof Must Be On Agencies, Not Citizens.
Newspapers, broadcasters and journalists serve as watchdogs, informing
citizens about government activities that affect their lives and pocketbooks.
In order to fulfill their watchdog role, the news organizations need access to
public records. Accordingly, they have a strong interest in ensuring that
courts do not improperly shift the burden of proof in PRA actions from
governments to citizens, as happened in this case.
Citizens are at an inherent disadvantage when they sue to obtain records.
That is because citizens cannot see the nature or content of withheld records,
and therefore are ill-equipped to disprove agency claims that records are
exempt from disclosure. The PRA recognizes this disadvantage, and attempts to
balance the scales as follows:
The burden of proof shall be on the agency to establish that refusal to permit
public inspection and copying is in accordance with a statute that exempts or
prohibits disclosure in whole or in part of specific information or records.
RCW 42.56.550(1) (italics added). Any other rule would make the PRA a useless
tool, incapable of discerning the lawfulness of agency actions.
In this case, the burden should have been on Pierce County to prove that its
non-disclosure of requested e-mails was "in accordance with a statute." Id.
Yet the trial court imposed on the citizens an impossible burden -- proving,
without discovery, that non-exempt, public records existed on Pierce County's
computers before they were destroyed. Statement of Grounds for Direct Review,
Appendix H (July 20, 2007 hearing transcript) at p. 27, line 11, to p. 28,
line 7, and Appendix M (Sept. 7, 2007 hearing transcript) at p. 43, lines
6-10. Shifting the burden of proof to citizens, as the trial court did here,
nullifies RCW 42.56.550(1) and makes it impossible to hold governments
accountable for deleting e-mails that should be disclosed. Direct review is
needed to uphold the PRA's fundamental mandate, which is to require disclosure
unless the government proves that a specific exemption applies.
RCW 42.56.070(1).
C. News Reports Illustrate the Public's Interest in E-mails.
Journalists at Washington newspapers and broadcast stations frequently use
government e-mails in their reporting of news. Declaration of Michael Fancher
(April 30, 2008), Paragraph 2; Declaration of Katherine A. George (May 6, 2008),
Exhibits A to L. E-mails sometimes provide the most accurate information
about what is really happening in government. Fancher Dec., Paragraph 2. Usually,
e-mails are newsworthy because they reveal information that is at odds with
more widely disseminated public communications. Id. Government e-mails are
useful when trying to determine such matters as: a) what government regulators
knew, and when they knew it; b) who has exerted or attempted to exert
influence on government decision-makers; and c) whether a government's
internal statements are consistent with statements made directly to the
public. George Dec., Paragraph 2.
The Society of Environmental Journalists (SEJ), an international organization
of more than 1,300 reporters, academicians and students, has an active First
Amendment Task Force for the very reason that public records are essential to
ferreting out the facts regarding regulation, protection or degradation of the
natural environment. SEJ is interested in this case because its members, in
Washington state and elsewhere, are alarmed by the prospect of routine
destruction of e-mails removing public information from the public's reach.
E-mails can reveal how and why government decisions are made (or not
made) -- a matter at the heart of the PRA. See RCW 42.56.030 ("the people
insist on remaining informed so that they may maintain control over"
their governments). They can uncover scandals or illegal activity by
government employees. Fancher Dec., Paragraph Paragraph 4, 7; George Dec., Exhibits J and
K.
In a particularly dramatic example of the importance of e-mails to public
accountability, e-mails disclosed to The Bellingham Herald last year led
to a criminal investigation of the mayor of Ferndale, Washington. George
Dec., Paragraph 3. In a May 30, 2007, story that was based on e-mails obtained
through the Public Records Act, the Herald reported that then-Mayor Jerry
Landcastle instructed the city staff to "make an exception" to land-use
permitting rules for the benefit of one business. Id., Exhibit A. A
criminal probe resulted from the revelations in that story. Id., Exhibit
B.
In another example of government e-mails leading to formal
investigations, the Seattle Post-Intelligencer reported in a January 19,
2007 story:
Thirty-two current and former Port of Seattle police officers -- nearly a third
of the department's sworn force – have been caught exchanging or receiving
racist, sexist and sexually explicit e-mails since the end of October, 2004,
department records obtained by the Seattle P-I show.
Id., Exhibit C. If the e-mails had been destroyed, these disturbing practices
might have continued, or escaped the scrutiny they deserved.
In a more recent example of e-mails figuring prominently in the news, Jim
Brunner of The Seattle Times reported in an April 10, 2008 story:
E-mails obtained by lawyers for the city of Seattle show Sonics owners were
talking enthusiastically last April about moving the franchise to Oklahoma City
-- despite telling the public and the NBA they were still interested in keeping
the team there.
Id., Exhibit D. While the e-mails described in Mr. Brunner's story were
obtained through legal discovery, rather than through the Public Records Act,
they illustrate the potential for e-mails to highlight the difference between
truth and propaganda. Also, because the e-mails were reported in the media, the
public could better judge how elected officials were looking out for the
public's interest. Fancher Dec., Paragraph 6.
Also related to the Sonics, Chris McGann of the Seattle
Post-Intelligencer reported an April 1, 2008 story:
OLYMPIA -- Seattle's attempt to secure a tax package for Key Arena wasn't the
wild, last-second shot at keeping the Sonics that leading lawmakers made it out
to be, according to e-mails obtained through a public disclosure request.
Id., Exhibit E. The story shows that e-mails can illuminate inconsistency
between a government's internal statements and its public statements.
E-mails can take citizens behind the walls of government power, and show
them who is exerting influence there. For example, in a March 2, 2008
story, the Seattle Post-Intelligencer quoted an exchange of e-mails
showing that a Port of Seattle consultant agreed to pay a contractor
$59,999 for port work without trying to document the contractor's costs.
George Dec., Exhibit F. In an e-mail suggesting that cozy relations with
a private contractor mattered more than protecting public money, the
consultant said in part: "lets [sic] figure that out via tummy rub in
lieu of you all documenting what is undocumentable." Id.
Similarly, in a January 2, 2008 story headlined "Big land deal, big
questions," Jim Brunner and Lauren Vane of The Seattle Times reported
that King County Executive Ron Sims skipped competitive bidding in
negotiating a lucrative land deal with a politically well-connected
developer. Id., Exhibit H. The story quoted e-mails obtained through
the Public Records Act to show that concerns about the deal were raised
internally, and ignored. Id. Disclosure of the e-mails helped the
public evaluate the actions of county officials. Fancher Dec., Paragraph 5.
On the flip side, e-mails can show that governments sometimes resist
heavy-handed pressure, as in the case of Huskies football. Fancher Dec.,
Paragraph 3. In a January 31, 2008 posting on the Seattle Times' news media blog,
Mike Fancher, the Times' Editor at Large, praised the University of
Washington for disclosing about 1,000 e-mails which revealed intense
pressure on the UW to fire its coach and athletic director. George
Dec., Exhibit L. One booster had pledged $100,000 in law-school
scholarship money if UW President Mark Emmert would fire Coach Tyrone
Willingham and another $100,000 for firing athletic director Todd Turner.
Id. See also Fancher Dec., Paragraph 3.
E-mails can reveal relationships between public officials and private
interests that might not otherwise come to light. For example, in a June
6, 2006 story, Jeffrey Mize of the Vancouver Columbian reported:
LA CENTER -- Newly released e-mail messages reveal a pattern of two city council
members working closely behind the scenes with the city's cardrooms to oppose
the Cowlitz Tribe's proposed casino. Councilwoman Linda Tracy wrote in a Jan.
26 e-mail to Councilman Troy Van Dinter that the city and the cardrooms 'are ONE
as far as I'm concerned.'
George Dec., Exhibit I.
The reports described above illustrate that government e-mails are a
matter of high public interest. The news reports used e-mails to reveal
the truth after the public was misled, and to increase the public's
understanding of how decisions were made, and under what influences.
These reports based on e-mails serve the core purpose of the PRA to fully
inform citizens about their governments. RCW 42.56.030. Thus,
protecting public access to e-mails is a matter of urgent and broad
public import, warranting direct review of this case. RAP 4.2(a)(4).
III. CONCLUSION
For the foregoing reasons, the Court should grant direct review.
Dated this 6th day of May, 2008.
Respectfully submitted,
LAW OFFICES OF CHARLOTTE
CASSADY
By: ______________________________
Katherine George
WSBA No. 36288
Attorneys for Amici
1 All's Well That Ends Well, Act iii, Scene V (italics added). According to
Wikipedia, the play was first published in First Folio in 1623.
2 Members of the news organizations sometimes take editorial positions that
are critical of the BIAW. See, e.g., a March 31, 2008 editorial, "Builders
Group: Bizarre Assertions," at
http://seattlepi.nwsource.com/opinion/357145_ecoed.html.